O processo como instrumento viabilizador de uma jurisdição contramajoritária : uma análise a partir da luta por reconhecimento do negro no Brasil

• Ano de defesa: 2018
• Autor(a) principal: Morelato, Vitor Faria
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal do Espírito Santo; BR; Mestrado em Direito Processual; Centro de Ciências Jurídicas e Econômicas; UFES; Programa de Pós-Graduação em Direito Processual
• Palavras-chave em Português: Counter-majority jurisdiction; Struggle for recognition; Black movement; Procedural law; Jurisdição contramajoritária; Luta por reconhecimento; Movimento negro; Direito processual; Norma jurídica; Processo civil; Reconhecimento (Filosofia); Jurisdição; Direito - História; Direito Processual Civil; 340
• Link de acesso: http://repositorio.ufes.br/handle/10/8852

From the premise that the human being is a social being, his personality, and consequently the products of his intellect, arise and are perfected of this interaction. Therefore, it is with law, which ends up reflecting the set of general values defended by its creative society, so that the Jurisdictional Process, as one of its internal institutions, will have the function of directly applying the general values effectively practiced by this society. It is in the final extract of the action in the jurisdictional process that we compare the elementary difference between the defended values and those actually practiced, that is, it is in this action that we understood an empirically observable ethical. In order to understand the use of the process as an instrument of affirmation of a set of practices of normalized exclusion or, in turn, as an instrument of subversion to the imposed order and, consequently, of a counter-majority jurisdiction, we are based on the theoretical basis of Hegelian recognition for the post-metaphysical vision of Axel Honneth. To do so, we chose as empirical element of analysis, from the doctrine in history and sociology, the struggle of the blacks for recognition from the Brazilian slave period, with special emphasis on acts of struggle through the process. The search for an empirical element in history has occurred so much because we conclude that, theoretically, there is no way of previously guarantee the use of the process as a tool of consolidation or subversion to ethics. So that the very theory of the struggle for recognition, to foresee this inability of the theory of law, understands the ways of historicity and sociology as more effective as far as a theory of justice is concerned. As a conclusion, we find that the process was, and still can be, used as a tool of counter-majority jurisdiction, and, consequently, as a step in the struggle for recognition. However, the conceptual dependence of the legal norm on interpretation explains the different decisions on similar matters, and does not allow us to conclude that the process will always be that instrument, necessitating other acts of struggle, such as active political participation in particular.